United States District Court, W.D. Texas, Austin Division
SPARKS, SENIOR UNITED STATES DISTRICT JUDGE.
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Defendant City of Cedar
Park (the City)'s Motion to Dismiss for Lack of Subject
Matter Jurisdiction and Motion for Reconsideration [#50],
Plaintiff Reagan National Advertising of Austin, Inc.
(Reagan)'s Response [#53] in opposition, the City's
Reply [#56] in support, and the City's Brief [#46-1] in
support. Having reviewed the documents, the
governing law, and the case file as a whole, the Court now
enters the following opinion and order.
a First Amendment case. Reagan is a commercial billboard
company in the business of outdoor advertising. Am. Compl.
[#18] at 2. On March 8, 2017, Reagan submitted five sign
permit applications to the City. Am. Mot. Summ. J. [#24-2]
(Sign Permit Applications). Three of these applications
requested permission to install digital sign faces on
existing outdoor signs (the Digital Conversion Applications).
Id. at 1, 2-16. The other two applications sought
permits for the construction of two new signs (the New Sign
Applications). Id. at 1, 17-32.
receive approval, permit applications must demonstrate
proposed signs meet the requirements of the City's Sign
Code. These requirements are contained in two
articles. The first article-Article 13.01-is entitled
"On-Premises Sign Standards and Permits." Am. Mot.
Summ. J. [#24-5] Ex. 5 (Sign Code) at 1. The second
article-Article 13.03-is entitled "Off-Premises Sign
Standards and Permits." Id. at 25.
Article 13.01 and Article 13.03 contain provisions which rely
upon a distinction between on-premises and off-premises
signs. An "on-premises sign" is defined as a
"sign identifying or advertising the business, person,
activity, goods, products, or services located on the site
where the sign is installed, or that directs persons to a
location on that site." Sign Code at 4. By contrast, an
"off-premises sign" is defined as a "sign
referring to goods, products or services provided at a
location other than that which the sign occupies."
Id. at 3-4. All five of Reagan's permit
applications relate to off-premises signs.
March 14, 2017, the City denied Reagan's permit
applications. Am. Mot. Summ. J. [#24-4] Ex. 4 (Denial
Letters). Among other reasons, the New Sign Applications were
denied because they proposed using light-emitting diode (LED)
displays in off-premises signs and because they proposed to
erect "pylon signs." Id. at 7-10; see
also Sign Code § 13.01.007(i)(4)
("Electronically controlled changeable messages signs
shall not advertise goods or services not offered on the
premises on which the sign is located."); id.
§ 13.03.006(d) ("No light emitting diode (LED)
displays or signs shall be permitted."). The City also
denied the Digital Conversion Applications because, like the
New Sign Applications, the Digital Conversion Applications
proposed installing LED displays in off-premises signs.
Denial Letters at 1-6; Sign Code §§
13.01.007(i)(4), 13.03.006(d); see also Id.
§§ 13.01.016(a), 13.03.007(a) ("[N]o change or
alteration shall be made [to existing signs] that would
increase the degree of nonconformity [with the Sign
the City denied Reagan's permit applications, Reagan
filed this action in state court arguing that the Sign
Code's differing treatment of on-premises and
off-premises signs constitutes content discrimination and
that this content-based distinction cannot survive
constitutional scrutiny. Notice Removal [#1-1] Ex. 1
(Original Pet.) at 4. The City subsequently moved for summary
judgment on Reagan's constitutional claims. See
Mot. Summ. J. [#24].
Court granted the motion in part and denied the motion in
part. Order of May 23, 2019 [#49] at 16-17. As a preliminary
matter, the Court concluded Reagan possessed standing to
challenge the denial of the Digital Conversion Applications
but not the New Sign Applications. Id. at 4-7. The
Court then considered the constitutionality of the Sign Code
and concluded that although the Sign Code's regulation of
commercial speech survived scrutiny under Central
Hudson, the Sign Code's content-based regulations of
noncommercial speech were subject to strict scrutiny under
Reed v. Town of Gilbert. 135 S.Ct. 2218 (2015).
Because the City had not demonstrated the Sign Code's
content-based regulation of off-premises signs containing
noncommercial speech survived strict scrutiny, the Court
denied summary judgment on Reagan's claim that denial of
the Digital Conversion Applications violated the First
Amendment. Order of May 23, 2019 [#49] at 16-17. That claim
is currently set for trial in November 2019. Order of Sept.
22, 2017 [#11] at 3.
City now moves to dismiss Reagan's claims for lack of
jurisdiction. Mot. Dismiss [#50] at 1. In the alternative,
the City moves for reconsideration of the Court's prior
summary judgment order. Id. This pending motion is
ripe for review.
Motion to Dismiss for Lack of Jurisdiction
III of the Constitution limits the jurisdiction of federal
courts to cases and controversies. U.S. Parole Comm'n
v. Geraghty, 445 U.S. 388, 395 (1980). In order to meet
this case-or-controversy requirement, plaintiffs must
establish they have standing to sue. Raines v. Byrd,
521 U.S. 811, 818 (1997). Plaintiffs have standing to sue if
they have suffered an injury in fact fairly traceable to the
challenged action of the defendant and "likely to be
redressed by the requested relief." Allen v.
Wright, 468 U.S. 737, 750-52 (1984); see also
Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC),
Inc., 528 U.S. 167, 185 (2000) ("[A] plaintiff must
demonstrate standing separately for each form of relief
sought."). "The party invoking federal jurisdiction
bears the burden of establishing these elements."
Lujan v. Def. 's of Wildlife, 504 U.S. 555, 561
City argues Reagan lacks standing to bring its remaining
First Amendment claims- which challenge the denial of
Reagan's Digital Conversion Applications-because (1)
Reagan has not suffered any injury; (2) any injury suffered
by Reagan is not traceable to the City's denial of the
Digital Conversion Applications; and (3) the denial of the
Digital Conversion Applications is not redressable because
those applications will be denied on content-neutral grounds